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I’ve been reading Marcus Aurelius and he keeps returning to the theme that one must live “according to one’s nature” in order to live a good life. He really believes in nature. In fact, he reasons as follows: nature wouldn’t cause bad things to happen to the virtuous as well as the wicked, and we see that both the virtuous and the wicked often die young, so early death must not be a bad thing.

Apparently this focus on doing what is according to one’s nature is a standard feature of Stoic philosophy. It makes me think of this song, one of the few times the Beatles let Ringo sing. It’s not even a Beatles original; it’s a cover of a Buck Owens hit from a couple of years previously. Released as a B-side to “Yesterday” and then on the Help! LP.

Ringo has a different view on the virtues of acting according to one’s nature:

They’re gonna put me in the movies
They’re gonna make a big star out of me
We’ll make a film about a man that’s sad and lonely
And all I gotta do is act naturally
Well, I’ll bet you I’m a-gonna be a big star
Might win an Oscar you can’t never tell
The movie’s gonna make me a big star,
‘Cause I can play the part so well
Well, I hope you come and see me in the movie
Then I’ll know that you will plainly see
The biggest fool that’s ever hit the big time
And all I gotta do is act naturally

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Scalia understood, when he needed to, that words changed their meaning, and stretched to accommodate cases that didn’t exist for the founders.What, in the sense of the Fourth Amendment, counts as a “search”?Scalia took up this lexical question in Kyllo vs. U.S, writing that infrared scanning of a house to detect excess heat (generated, the police correctly inferred, by a marijuana greenhouse within) did indeed constitute a search.This is not the kind of search the Framers contemplated. Nonetheless, says Scalia:

When the Fourth Amendment was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)

How to read this? The written definition can be read to include viewing a house from the outside, and indeed, Scalia brings it up in this context:

One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search”1 despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment.

But visual inspection of a house has not been classified as search by the Court — “perhaps,” Scalia says, “in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional.”

In fact, it’s pretty clear from other Scalia opinions that he chooses a meaning for the word “search” which is simultaneously more restrictive than the dictionary definition — it excludes visual inspection of a house — and more inclusive than the contemporary plain-language meaning. To push a stereo away from the wall and look at its serial number, as in Arizona v. Hicks, is not to “search” the stereo; it’s not even clear whether, in standard English, a stereo can be searched, unless by pulling open the casing and digging through its insides. But in Scalia’s majority opinion there, the moving of the stereo is what creates the search:

A truly cursory inspection – one that involves merely looking at what is already exposed to view, without disturbing it – is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion… [t]aking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL’S suggestion, post, at 333, the “distinction between `looking’ at a suspicious object in plain view and `moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent – serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”

So a “search,” for Scalia, requires observation of something that might reasonably be expected to be private, but doesn’t require looking inside of the thing searched. I think that’s a pretty good definition; but it’s not what’s in the dictionary, it’s not the way we use the word in plain Enlglish, and Scalia makes no claim that it’s what was in the Framers’ minds. It’s a definition you choose in order to achieve a goal, the goal of a workable evidential rule that suits our — or someone’s — sense of justice.

And that’s why it grates when Scalia says “[a] search is a search.” So matter-of-fact, so direct; but so utterly opposite to what’s actually happening! He should have said “A search is what we define a search to be.”

As for the dissent’s extraordinary assertion that anything learned through “an inference” cannot be a search, see post, at 4-5, that would validate even the “through-the-wall” technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences)

To measure radiation emanating from the outside of a house, and to infer by technological means something about the contents of the interior that can’t be directly observed: this, for Scalia, is a search. To count all the inhabitants of a city you can find, and to infer by technological means something about the people who couldn’t be directly observed: that, Scalia says, isn’t counting. In Kyllo, Scalia is happy to speculate about future technologies that will make his view more obviously correct, as soon as they exist (“The ability to “see” through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development.”) In Commerce, his vision of technological progress in statistics is decidedly more pessimistic. Why?

I didn’t mean for Antonin Scalia to be a major character in my book. I was just going to write about an interesting math snafu that shows up in one of his capital punishment opinions. But then that led quite naturally into talking about “formalism,” which many mathematicians use (or think of themselves as using) as their everyday philosophy of math, just as Scalia used it (or thought of himself as using it) as his everyday philosophy of jurisprudence.

Legal reasoning is not much like math. But Scalia sometimes acts like he thinks it is. That’s what makes him an interesting figure to me. He writes down arguments which he presents as derivations axioms — as if the words of the Constitution determined the resolution of the legal question, so long as you were willing to apply them methodically and impartially in the correct sequence.

But surely that’s wrong! The words of the Constitution underdetermine a lot of really interesting questions. Richard Posner:

Most of the cases the Supreme Court agrees to decide are tossups, in the sense that they cannot be decided by conventional legal reasoning, with its heavy reliance on constitutional and statutory language and previous decisions. If they could be decided by those essentially semantic methods, they would be resolved uncontroversially at the level of a state supreme court or federal court of appeals and never get reviewed by the Supreme Court.

I have written before about the Court’s decision that statistical sampling in the Census is in conflict with the relevant Constitutional clause:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.

Scalia’s opinion concentrates on the word “enumeration,” which he argues does not mean “determining the number of,” but rather should be understood in the more restrictive sense of “counting one by one.” And he has some good contemporary sources for this reading! You get a nice satisfying no-nonsense feeling, reading this opinion. Then you start to think about what it actually says. Is Scalia declaring that constitution requires that the census count people one by one? Can’t be — for the last fifty years the census has been conducted mostly by mail. Does he think the census has to enumerate something, but it doesn’t have to be people? Could it be anything? Could it be “all property owners?” Could it be “all non-atheists?”

Note, too, that when you fill out the census form, you write down the number of people in your household, then you fill out information for each person. When the numbers are compiled, the computer, surely, adds up the numbers from each form to get an answer. In other words: a mathematical process other than enumeration-in-the-narrow-sense whose output is an approximation to the total number of people in the United States. Kind of like statistical sampling. Except not as good an approximation.

I don’t think we should consider that process unconstitutional. It seems reasonable to consider it an enumeration, despite the inconsistency with some dictionary definitions. Because dictionary definitions aren’t mathematical definitions. A mathematical object is exactly what it is, and nothing else. But when we read a word, we make a choice.

Scalia makes one choice: we could also opt for a more expansive but equally common-sensical definition of “enumerate” as “determine, to the extent possible, the number of,” which permits statistical sampling aimed at counting the “whole number” of Americans. That “whole” is a word in the Constitution too, with as much binding force as “enumeration.” It doesn’t appear in Scalia’s opinion.

Am I saying Scalia’s opinion in Dept. of Commerce vs. U.S. House of Representatives was wrong? No; I’m saying merely that it’s not the kind of opinion it presents itself as being. It is not determined by the text before it. It relies, elsewhere, on an argument from pragmatism: if statistical sampling is constitutionally permissible, then legislatures might authorize it, and the resulting partisan wrangling over methodology would create hard cases for future courts. These are fair arguments, but they’re not textual arguments. The argument admits that we make choices when deciding what words mean, and we should let our choices be guided by their likely consequences.

But no, I don’t think those arguments are obviously wrong. It is pretty rare to find Scalia being obviously wrong. Except in the following higher-level sense. Scalia seldom concedes that the questions he faces are authentically difficult. He — or at least the character of “Scalia” he plays in the opinions — lacks the humbleness appropriate to the task. His habit is to present his conclusion as if it’s obviously right, the way a mathematical proof, once you understand it, is obviously right. That is obviously wrong.

Update: Commeter aaaatos makes a really important point, one I meant to address directly in the post. He writes: “what makes the legal system so useful to mankind is the fact that therein law is treated in a formalistic way as much as possible, i.e. as if it were mathematics.” This points to another plausible account of Scalia: that he didn’t actually believe law was very much like math, but felt it was best practice for judges to pretend to believe that. That’s what I was getting at with the distinction between Scalia the person and “Scalia,” the persona he adopts as a writer of opinions.

Why pretend? Partly because it enhances the authority of the process; partly because pretending to believe it helps us be “as formalist as possible,” mildly constraining the inevitably biased choices we make when we read words and try to obey them.

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Even the pleasures of sense are reducible to intellectual pleasures, known confusedly. Music charms us, although its beauty consists only in the agreement of numbers and in the counting, which we do not perceive but which the soul nevertheless continues to carry out, of the beats or vibrations of sounding bodies which coincide at certain intervals.

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Good answers to the last question! I think I perhaps put my thumb on the scale too much by naming a variable p.

Let me try another version in the form of a dialogue.

ME: Hey in that other room somebody flipped a fair coin. What would you say is the probability that it fell heads?

YOU: I would say it is 1/2.

ME: Now I’m going to give you some more information about the coin. A confederate of mine made a prediction about whether the coin would fall head or tails and he was correct. Now what would you say is the probability that it fell heads?

YOU: Now I have no idea, because I have no information about the propensity of your confederate to predict heads.

(Update: What if what you knew about the coin in advance was that it fell heads 99.99% of the time? Would you still be at ease saying you end up with no knowledge at all about the probability that the coin fell heads?) This is in fact what Joyce thinks you should say. White disagrees. But I think they both agree that it feels weird to say this, whether or not it’s correct.

Why would it not feel weird? I think Qiaochu’s comment in the previous thread gives a clue. He writes:

Re: the update, no, I don’t think that’s strange. You gave me some weird information and I conditioned on it. Conditioning on things changes my subjective probabilities, and conditioning on weird things changes my subjective probabilities in weird ways.

In other words, he takes it for granted that what you are supposed to do is condition on new information. Which is obviously what you should do in any context where you’re dealing with mathematical probability satisfying the usual axioms. Are we in such a context here? I certainly don’t mean “you have no information about Coin 2” to mean “Coin 2 falls heads with probability p where p is drawn from the uniform distribution (or Jeffreys, or any other specified distribution, thanks Ben W.) on [0,1]” — if I meant that, there could be no controversy!

I think as mathematicians we are very used to thinking that probability as we know it is what we mean when we talk about uncertainty. Or, to the extent we think we’re talking about something other than probability, we are wrong to think so. Lots of philosophers take this view. I’m not sure it’s wrong. But I’m also not sure it’s right. And whether it’s wrong or right, I think it’s kind of weird.

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There are two coins. Coin 1 you know is fair. Coin 2 you know nothing about; it falls heads with some probability p, but you have no information about what p is.

Both coins are flipped by an experimenter in another room, who tells you that the two coins agreed (i.e. both were heads or both tails.)

What do you now know about Pr(Coin 1 landed heads) and Pr(Coin 2 landed heads)?

(Note: as is usual in analytic philosophy, whether or not this is puzzling is itself somewhat controversial, but I think it’s puzzling!)

Update: Lots of people seem to not find this at all puzzling, so let me add this. If your answer is “I know nothing about the probability that coin 1 landed heads, it’s some unknown quantity p that agrees with the unknown parameter governing coin 2,” you should ask yourself: is it strange that someone flipped a fair coin in another room and you don’t know what the probability is that it landed heads?”

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A while ago I read a great paper by the philosopher L. A. Paul and wrote this post about it, asking: is the experience of becoming a vampire analogous in important ways to the experience of becoming a parent? When deciding whether to become a vampire, is it relevant what human you thinks about being a vampire, or only what future vampire you would think about being a vampire?

Paul liked the example and was kind enough to include (her much deeper and more fully worked-out version of) it in her book, Transformative Experience.

And now David Brooks, the official public philosopher de nous jours, has devoted a whole column to Paul’s book! And he leads with the vampires!

Let’s say you had the chance to become a vampire. With one magical bite you would gain immortality, superhuman strength and a life of glamorous intensity. Your friends who have undergone the transformation say the experience is incredible. They drink animal blood, not human blood, and say everything about their new existence provides them with fun, companionship and meaning.

Would you do it? Would you consent to receive the life-altering bite, even knowing that once changed you could never go back?

The difficulty of the choice is that you’d have to use your human self and preferences to try to guess whether you’d enjoy having a vampire self and preferences. Becoming a vampire is transformational. You would literally become a different self. How can you possibly know what it would feel like to be this different version of you or whether you would like it?

Brooks punts on the actually difficult questions raised by Paul’s book, counseling you to cast aside contemplation of your various selves’ preferences and do as objective moral standards demand. But Paul makes it clear (p.19) that “in the circumstances I am considering… there are no moral or religious rules that determine just which act you should choose.”

Note well, buried in the last paragraph:

When we’re shopping for something, we act as autonomous creatures who are looking for the product that will produce the most pleasure or utility. But choosing to have a child or selecting a spouse, faith or life course is not like that.

Choosing children, spouses, and vocations are discussed elsewhere in the piece, but choosing a religion is not. And yet there it is in the summation. The column is yet more evidence for my claim that David Brooks will shortly announce — let’s say within a year — that he’s converting to Christianity. Controversial predictions! And vampires! All part of the Quomodocumque brand.

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I saw Ted Olson and David Boies talk about the Citizens United decision at the Aspen Ideas Festival a couple of months ago. Olson likes the decision, and he was passionate and funny in its defense. “The more speech we have, the better,” he said. And who can disagree? The antidote to bad speech is good speech, marketplace of ideas, etc.

It wasn’t until I was on my way home, esprit de l’airplane, that it occurred to me to think about the followup case, Arizona Free Enterprise Club vs. Bennett, decided a year after Citizens United with the same five justices in the majority. In that case, the Court found unconstitutional an Arizona law that provided government funds to publicly funded candidates allowing them to match any spending by a self-funded candidate exceeding a specified cap. Here the Court managed to reason that adding more speech, funded by the state, added up to less speech. They argued that a wealthy candidate whose every ad was matched by an equally well-funded opposition ad would refrain from campaigning at all — the self-funded candidates so inconfident in the strength of their ideas, apparently, as to prefer silence to both camps getting equal time.

It’s pretty starkly different from Olson’s let-a-hundred-flowers-bloom philosophy. The Court called the Arizona law a “burden” on free speech, though of course it in no way prevented self-funded candidates from spending and speaking. Unless you take the view that free speech responded to is effectively cancelled or suppressed, precisely the opposite of Olson’s attitude. I wonder what he thinks about this decision? Is the right to free speech a right to be heard, or a right to drown out?

Rabbi Nahman said in Rabbi Samuel’s name: ‘Behold, it was good’ refers to the Good Desire; ‘And behold, it was very good’ refers to the Evil Desire. (It only says ‘very good’ after man was created with both the good and bad inclinations, in all other cases it only says ‘and God saw that it was good’) Can then the Evil Desire be very good? That would be extraordinary! But without the Evil Desire, however, no man would build a house, take a wife and beget children; and thus said Solomon: ‘Again, I considered all labour and all excelling in work, that it is a man’s rivalry with his neighbour.’

It is said that two thousand years ago, a group of Rabbis encountered the Yetzer Hara amidst the destruction of Jerusalem. Knowing that the evil impulse was to blame for the devastation of their Holy Temple, they grabbed him and wrestled him into a chamber pot, where they held him. Ready to destroy the Yetzer Hara, one Rabbi interjected. “Who knows what will happen if you destroy him. Hold him for three days and see what happens!”
The Rabbis waited patiently for three days and then began scouting the city. Immediately, they noticed that the world was beginning to rot away. People stopped doing business. Chickens stopped producing eggs. Families stopped building houses. Immediately, they knew what they had to do. They let him go, knowing that the world could not be sustained without him. (Yoma 69b)

But here’s what I don’t get. If the yetzer hara is a morally neutral complex of desires (the physical/material/selfish part of human nature) why is it called the evil impulse? It could have been called something else — “the animal nature” or something. I feel like it’s a basic feature of Jewish thought that things are called what they’re called for a reason. Nobody argues that lashon hara isn’t actually bad. If it weren’t bad it wouldn’t be called lashon hara!

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Yes, I admit, I do have the moral philosopher’s (or for that matter, the mathematician’s) habit of trying to take stated principles to their logical conclusions, even if many people would regard those conclusions as “irrelevant” or “absurd.” (To take a different example: “People should have the right to own whatever weapon they want, since merely owning it doesn’t harm anyone.” “OK then, what about nuclear missiles?” “That’s irrelevant and absurd! I was talking about guns.”) Is this habit something I should apologize for?

and this reddit comment he quotes approvingly:

I think the reason Dworkin comes up in discussions like this is because her thinking is the logical endpoint of mainstream feminist theory.
It goes something like this:
1) Women are systematically oppressed by men
2) If 1 is true, how can a woman ever consent to sex or practically anything else with men? Any “consent” a woman gives will be given under duress because she is being systematically oppressed.
3) If any “consent” a woman gives is under duress (because every decision and choice a woman makes is under duress because she’s being systematically oppressed), then women can never ever give consent in any dealing with men.
Dworkin, to her credit, was so logical that she came to this conclusion and accepted it. All logical thinkers will probably come to this conclusion which is why nerds and STEM people will like and understand Dworkin. She’s logical. She makes sense.

For my own part, I find this idea of taking political and moral principles to their logical conclusions to be very weird. And I don’t think it’s “the mathematician’s habit,” as Scott says. At least, it’s not this mathematician’s habit. Being a mathematician doesn’t incline me to apply Boolean operations to ethical principles; on the contrary, I think being a mathematician makes me more alive than the average person to the difference between mathematical assertions (which do behave really well under logical operations) and every other kind.

In particular, I don’t find the argument by the reddit commenter very compelling. There are lots of feminists (I think almost all feminists!) who sound nothing like Andrea Dworkin, and who pretty obviously think that there exists sex between men and women that isn’t rape. Is that because they can’t do logic? I am a STEM person and a feminist and I think systematic sexism exists in the world and I don’t think heterosexual sex is rape. Is that because I can’t do logic?

No — it’s because I think there are very few assertions about sex, power and feminism which stand in a relation of authentic logical entailment.